Citation Nr: 0524747
Decision Date: 09/12/05 Archive Date: 09/21/05
DOCKET NO. 99-06 761 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for peripheral
neuropathy.
2. Entitlement to service connection for an acquired
psychiatric disorder.
3. Entitlement to a rating in excess of 10 percent for
residuals of a cold injury to both feet from October 7, 1996,
to January 11, 1998.
4. Entitlement to a rating in excess of 20 percent for the
veteran's right foot cold injury residuals from January 12,
1998.
5. Entitlement to a rating in excess of 20 percent for the
veteran's left foot cold injury residuals from January 12,
1998.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. Grabia, Counsel
INTRODUCTION
The veteran served on active duty from May 1974 to May 1977.
The veteran had five months of foreign service in Germany.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from rating decisions in November 1998, July 2000,
and July 2002 by the Department of Veterans Affairs (VA)
Regional Office (RO) in No. Little Rock, Arkansas.
The veteran's original claim seeking entitlement to service
connection for residuals of cold injury to the feet was
denied by a final rating decision in March 1993.
Subsequently the Board in an August 1998 decision reopened
and granted the veteran's claim.
By rating action in November 1998 the RO assigned a 10
percent rating from October 1996 for bilateral lower
extremity cold injuries. Separate 10 percent ratings for
each lower extremity were assigned from January 12, 1998, the
date of a change in the rating schedule providing for
separate ratings for each extremity affected by cold injury.
The veteran appealed for higher ratings. Fenderson v. West,
12 Vet. App. 119 (1999).
By rating actions in July 2000 the RO denied service
connection for peripheral neuropathy; and by rating action in
July 2002 the RO denied service connection for an adjustment
disorder.
In December 2002, pursuant to 38 C.F.R. § 19.9(a)(2), the
Board undertook additional development to include obtaining
copies of medical records associated with the grant of Social
Security Administration (SSA) benefits by a decision dated in
September 2001, based upon Raynaud's phenomenon,
polyneuropathy and diabetes. In addition the veteran was to
be afforded a cold injury protocol examination and a
psychiatric examination. These examinations were completed
in April 2003. However, in May 2003, the United States Court
of Appeals for the Federal Circuit invalidated provisions of
38 C.F.R. § 19.9(a)(2), and (a)(2)(ii). See Disabled
American Veterans v. Secretary of Veterans Affairs, 234 F.3d
682 (Fed. Cir. 2003). The Board no longer has authority to
decide claims based on new evidence that it develops or
obtains without obtaining a waiver. Thus, in September 2003,
the Board remanded this case to the RO for initial
consideration of the new evidence.
By rating action in February 2005, the RO increased the 10
percent ratings for cold injury to the left and right feet
from 10 percent to 20 percent each. This was effective to
January 12, 1998, the date of the change in the VA
regulations regarding cold injuries.
FINDINGS OF FACT
1. The veteran's peripheral neuropathy of both upper and
both lower extremities is not related to an in-service
disease or injury or a service-connected disability.
2. The veteran's psychiatric disorder, diagnosed as major
depressive disorder, single episode, severe without psychotic
episode, and adjustment disorder with depressed mood is not
shown to be related to an in-service disease or injury; it
was not manifest to a compensable degree within one year
following separation from service; and it was not caused or
aggravated by a service-connected disability.
3. From October 7, 1996, to January 11, 1998, the veteran's
residuals of frozen feet were manifested by mild symptoms of
tingling sensations and some pain.
4. Since January 12, 1998, the veteran's cold injury
residuals of the right foot and the left foot are manifested
by complaints of pain, numbness, cold sensitivity, or
arthralgia, plus 5th toenail color change abnormalities;
there are no associated color changes or tissue loss,
cyanosis, hyperemia, edema, fungus, scars or ulcerations of
the feet. The feet were cool to touch and dry, and the nails
were intact. No orthopedic abnormalities were noted.
CONCLUSIONS OF LAW
1. Peripheral neuropathy was not incurred in or aggravated
by active service, nor is it due to or the proximate result
of a service-connected disability. 38 U.S.C.A. §§ 1110,
1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307,
3.309, 3.310 (2004).
2. A psychiatric disorder was not incurred in or aggravated
by active service, nor may a psychiatric disorder be presumed
to have been incurred during such service, nor is a
psychiatric disorder proximately due to or aggravated by a
service-connected disability. 38 U.S.C.A. §§ 1110, 1131,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309,
3.310 (2004).
3. The criteria for an initial rating in excess of 10
percent for residuals of a cold injury to both feet, from
October 7, 1996, to January 11, 1998, have not been met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic
Code (DC) 7122 (prior to January 12, 1998)
.
4. The criteria for an evaluation in excess of 20 percent
for cold injury residuals of the right foot have not been
met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38
C.F.R. §§ 3.102, 3.159, 4.104, Diagnostic Code 7122 (2004).
5. The criteria for an evaluation in excess of 20 percent
for cold injury residuals of the left foot have not been met.
38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§
3.102, 3.159, 4.104, Diagnostic Code 7122 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA has a duty to assist the veteran in the development of
facts pertinent to his claims. On November 9, 2000, the
Veterans Claims Assistance Act of 2000 (VCAA) (codified at
38 U.S.C.A. § 5100 et seq.) became law. Regulations
implementing the VCAA have been published. 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and the
implementing regulations apply in the instant case. A review
of the record shows the veteran was notified of the VCAA as
it applies to his
claims by correspondence dated in September 2001 and by the
supplemental statement of the case (SSOC) dated in February
2005.
A VCAA notice consistent with 38 U.S.C. § 5103(a) and 38
C.F.R. § 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim.
The RO advised the veteran, in the September 2001 letter,
that his claim for peripheral neuropathy was going to be
reconsidered under the VCAA, and what information and
evidence was needed to substantiate his claim. The letter
also advised him what information and evidence must be
submitted by him, namely, any additional evidence and
argument concerning the claimed conditions and enough
information for the RO to request records from the sources
identified by the veteran. In this way, he was advised of
the need to submit any evidence in his possession that
pertains to the claim.
He was specifically told that it was his responsibility to
support the claims with appropriate evidence. The RO
requested that the veteran clarify the nature of the benefits
sought.
The letter advised him what information and evidence would be
obtained by VA, namely, medical records, employment records,
and records from other Federal agencies. Subsequently, the
Board notes that the elements of the VCAA were addressed by
the RO in the February 2005 SSOC.
In this case, the Board finds that the veteran was fully
notified of the need to give to VA any evidence pertaining to
his claims. When considering the notification letters and
the other documents described above, as a whole, the Board
finds that he was aware that it was ultimately his
responsibility to give VA any evidence pertaining to his
claims.
The veteran has been provided with every opportunity to
submit evidence and argument in support of his claims and to
respond to VA notices. He was given ample time to respond to
the notices.
All the VCAA requires is that the duty to notify is
satisfied, and that veterans are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error).
A VCAA notice must be provided to a claimant before the
initial unfavorable decision on a claim for VA benefits by
the agency of original jurisdiction (AOJ). This was not
accomplished with respect to the claims decided herein as the
initial decisions on 4 of the issues occurred prior to the
passage of the VCAA. To the extent that there may be an
error in timing, the Board finds that any defect with respect
to the timing of the VCAA notice requirement in this case was
harmless error. After VCAA notice was provided to the
veteran, the issues on appeal were re-adjudicated and a
statement of the case was provided to the veteran. The
veteran has been provided every opportunity to submit
evidence and argument in support of his claims, and to
respond to VA notices. Therefore, to decide the appeal would
not be prejudicial error. See VAOPGCPREC 7-2004 (July 16,
2004).
With respect to VA's duty to assist, the RO attempted to
obtain all medical records identified by the veteran. All
medical and other evidence cited by the veteran as relevant
to his claims either has been obtained or, if not, is
unobtainable, including SSA award documents and medical
evidence.
The RO also obtained records of private physicians the
veteran cited as supportive of his claims. In addition the
veteran was provided the opportunity to present testimony at
a personal hearing at the RO in February 1998, and was also
afforded several comprehensive VA examinations.
As will be explained in more detail below, the Board finds
that further development is not needed in this case with
respect to the issues on appeal because there is sufficient
evidence to decide the claims.
Based on the above, the Board finds that VA has satisfied the
duty to assist the veteran. In the circumstances of this
case, additional efforts to assist or notify him in
accordance with the VCAA would serve no useful purpose. See
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Background. During service in February 1977, the veteran
was treated with foot soaks for complaints of foot pains
related to the cold. There are no other entries regarding
any frostbite treatment or injuries in service. Neither are
there any complaints or treatment in service for peripheral
neuropathy or for a psychiatric disorder.
In a November 1992 VA examination, some thinning of the skin
over the plantar aspects of the 4th and 5th toes bilaterally
was noted. The thinning of the skin was more marked on the
right. The skin of the remaining toes appeared normal. The
veteran stated that the right foot was more involved in the
frostbite than the left. Excellent hair growth was noted on
the dorsum of both feet and toes. Good pulses were palpated
in the peripheral arteries. The diagnosis was residuals of
thermal injury (frostbite) of both feet, characterized by
history and physical findings.
By rating action in March 1993 service connection for
frostbite of both feet was denied. This decision was not
appealed and became final. The veteran reopened his claim in
October 1996.
A rheumatology report dated in April 1997 from Thomas M.
Kovaleski, M.D., noted that the veteran reported frostbite to
his feet in Germany. Since that time the pain in his feet
had gotten progressively worse. It was worse in winter when
his feet felt like they were cold and perspiring. He had
some pain in the summer but not as much. His hands also
change color in cold to a whitish discoloration. He denied
hair loss, skin rash, mucositis, polyseroytitis, and
difficulty swallowing. The impression was that his foot pain
was secondary to frostbite. He was sensitive to cold, had
Raynaud's phenomenon by his own description, and his pain was
worse with colder weather.
A letter dated in September 1997 from Derek Lewis, M.D.,
noted that he had treated the veteran since November 1992 for
foot pain secondary to frostbite. Over the past 5 years he
had continually presented with pain in his feet, which was
worse in winter.
In a February 1998 personal hearing at the RO, the veteran
testified that in 1975 while on maneuvers in Germany he got
his feet wet. He was uncomfortable and reported to sick
call. He was instructed to change his socks, given foot
powder, and told to keep his feet dry. His feet have
bothered him since then and have gotten worse as he got
older. He first went to the VA in 1992 for treatment. His
main symptoms were pain and throbbing which hurt worse in
winter than summer. Cold weather, walking, and weight on his
feet caused the pain. The veteran was noted to be a
recovering alcoholic and drug user. As such, he refused to
take painkillers for his foot pain.
In August 1998, the Board reopened the claim and granted
service connection for frostbite of the feet.
By rating action in November 1998 a 10 percent evaluation for
cold injury of both feet was assigned effective from October
7, 1996. That same rating action noted that the rating
criteria for cold injuries had recently been amended allowing
assignment of a separate rating for each foot. As such, the
evaluation was changed to service connection for cold injury
of the right foot and the left foot each evaluated as 10
percent disabling from January 12, 1998, the effective date
of the change in the rating criteria.
In a May 1999 VA examination, the veteran reported being
exposed to minus 40 degrees temperature in Germany in 1975.
He was treated by a medic who soaked his feet and told him to
keep them dry. At the time he complained of numbness,
tingling, and throbbing pain in his feet. He had not had
skin grafts or foot surgery, and had not lost any toes. He
had noticed darkness of his toenails involving the fifth toes
bilaterally. He reported continuing episodes of numbness and
paresthesias involving the feet and the legs below the knees.
He reported excessive sweating of the feet, and on exposure
to cold the toes at times become pale and he gets aching
discomfort. An EMG in February 1999 was consistent with
bilateral neuropathic sensorimotor peripheral neuropathy.
The examiner noted no evidence of pes planus, pes cavus
deformity, callous formation, loss of digits, or fungal
infection of the feet. The feet were moist but cool to
touch. Toenail thickness was normal but there was
hyperpigmentation of the fifth toenails bilaterally. There
was partial hair loss over the toes and dorsum of the feet.
Dorsalis pedis and posterior tibial pulses were excellent
bilaterally. The impression was residuals of cold injuries
to both feet with previously documented by EMG neuropathic
sensorimotor peripheral neuropathy.
In support of his claim the veteran submitted several
statements from Dr. Kovaleski including an April 2000
statement noting that, "This man has a neuropathy stemming
back to severe cold exposure. I believe his neuropathy is
related to his cold exposure that he sustained while in the
Armed Forces." A May 2000 statement from Dr. Kovaleski
stated that, "I believe that he suffered significant thermal
injury causing his continued paresthesias of his lower
extremities."
In a June 2000 VA examination, the examiner noted the veteran
was unemployed. He last worked in August 1999. He reported
the onset of numbness of both feet about 5 or 6 years ago.
His legs had also been weak for about 4 years. He had some
associated burning and had been treated with Amitriptyline
for this. He denied a history of diabetes mellitus, vitamin
deficiency, uremia, thyroid dysfunction, or a family history
of peripheral neuropathy. He had an EMG of the lower
extremities in February 1999 which revealed an axonopathic
sensory motor peripheral neuropathy of the lower extremities.
He reported never having an alcohol problem and only used
alcohol socially in the past. However he had been
hospitalized in 1992 for alcohol rehabilitation.
In reviewing his record the examiner noted the veteran was
admitted in 1992 to Ft. Root VAMC for alcohol, cocaine, and
marijuana abuse. At that time he was drinking 6 cans of beer
and a pint of gin daily and reportedly had not been sober for
the previous 5 years.
The examiner noted the veteran had been recently evaluated by
a rheumatologist for myalgia and weakness and found to have a
persistently elevated serum CPK. An MRI revealed changes
consistent with myositis and he was currently being treated
for that. He had mild weakness of the lower extremities with
strength being 90-95% normal bilaterally and symmetrically,
including proximal strength. There was no ataxia, sensory,
pinprick sensation was decreased in a glove distribution to
the midforearms bilaterally and in a stocking distribution to
the knees bilaterally. Touch sensation was intact, as was
proprioception in both feet. Vibratory sensation was
diminished in both feet, and intact in the upper extremities.
Patellar tendon jerks were absent bilaterally. Achilles
tendon jerks were trace present and symmetrical, and plantar
responses were flexor bilaterally. The impression was
generalized distal symmetrical sensory motor peripheral
neuropathy involving both upper and lower extremities. It
was the opinion of the examiner that this was most likely
secondary to ethanol toxicity. The rational for this opinion
was the documentation of significant ethanol abuse for
several years prior to the onset of these symptoms and the
fact that the veteran had clinical evidence of sensory loss
involving both upper and lower extremities; myositis
resulting in myalgia and lower extremity weakness most
probably present for the past 4 years.
In a July 2000 rating action service connection was denied
for peripheral neuropathy, described as generalized distal
symmetrical sensory motor peripheral neuropathy involving
both upper and lower extremities, claimed as secondary to
service-connected disability of residuals of cold injury to
both feet. In making that determination the RO noted that
the evidence failed to establish any relationship between the
peripheral neuropathy and the cold injury to the veteran's
feet.
In March 2001 the veteran filed a claim for an adjustment
disorder secondary to his cold injuries of the feet. The RO
subsequently received VA mental health clinic records from
June to September 2000 revealing treatment for major
depression.
The RO received a letter in November 2001 from a VA Mental
Health Clinic nurse who noted that the veteran was followed
in the clinic for major depression, recurrent, moderate. She
opined that "his mood disorder is the direct result of the
veteran's bilateral, residuals cold weather injury to feet..."
In a June 2002 VA mental disorders examinations the veteran
reported not doing well due to pain in his hands and feet.
He attributed it to Raynaud's disease. When asked about
depression, he reported being depressed for about two years.
He noted that this was in part because of his disability,
because he was not working, and because his grandson was
stillborn. He reported a number of deaths of close people
over the past few years including his godfather, 3 sisters
in-laws, grandson, and 2 first cousins. He has not worked
since August 1999. He denied alcohol and drug abuse. He
remained married for 25 years.
The examiner noted that the veteran was casually groomed and
walked with the aide of a brace. He made virtually no eye
contact whatsoever. He was fully cooperative but appeared
rather dysphoric. His speech was essentially normal in rate
and rhythm. Mood was predominantly of considerable
depression, and affect was appropriate. Thought process and
associations were logical and tight with no looseness of
association or confusion noted. No gross impairment of
memory was observed and the veteran was oriented. There were
no hallucinations or delusional material noted. Insight and
judgment were adequate. The diagnosis was major depressive
disorder, single episode, severe without psychotic episode.
A GAF of 45 was assigned.
The examiner opined that the etiology of the veteran's
depression was unclear. In part it appeared to be related to
pain. However it was unclear what the particular cause of
the pain was. The veteran also attributed the depression to
the numerous deaths of close relatives.
By rating action in July 2002 service connection for an
adjustment disorder secondary to cold injuries of the feet
was denied. In making that determination the RO noted that
the evidence failed to establish any relationship between the
cold injuries and claimed adjustment disorder. In addition
there was no evidence that an adjustment disorder began in
service.
In an April 2003 VA cold injuries examination, the veteran
reported sustaining cold injury to both feet in Germany in
1975. He received no treatment at the time as they were in
the field. He was currently taking Gabapentin and
Nertryptyline with little relief of his neuropathic pain. He
complained of constant pain in both feet with weight bearing,
and excessive sweating in hot weather. He denied cold
sensitization and amputations. The records mention Raynaud's
Phenomenon however when questioned the veteran was unable to
described symptoms of Raynaud's. He only stated that he had
occasional tingling and numbness of the feet. He
specifically denied any change in coloration such as pallor
or cyanosis which subsequently cleared. His complaints of
pain were pretty much constant. He did have diminished
sensations of the toes. He had no history of fungal
infections, ulcerations, scars, or disturbance of nail
growth. He denied arthritic pain of the feet or swelling,
changes in skin color or thickness.
A review of the claims file revealed he had been diagnosed
with digital neuropathy, which was consistent with alcohol
abuse in the past. He denied alcohol abuse stating that, "I
drank a few when I was younger, but I quit in 1990." He had
not undergone any major surgery. He had a history of
hypertension and took Felodipine daily. He denied any other
major illness and specifically denied a history of diabetes
mellitus. He had never smoked and had no history of skin
cancer.
The examiner noted the foot color was unremarkable and
uniform. There was no cyanosis, hyperemia, edema, or
ulcerations noticed. The feet were cool to touch and dry.
He had no evidence of fungus, scars, and his nails were
intact. He had diminished sensation over the distal toes.
No orthopedic abnormalities were noted. There was no
evidence of Raynaud's noted. The diagnosis was residuals,
cold injury to feet.
The examiner noted that the veteran's history was
inconsistent with the presence of Raynaud's phenomenon and
there was no physical evidence to support this diagnosis upon
examination. Regarding diminished sensation it was at least
as likely as not that the diminished sensations of the toes
could well be due to his cold injuries, but review of the
records suggests that it may be equally likely that this was
due to other factors such as alcohol abuse in the past.
In an April 2003 VA mental disorders examinations the
examiner reviewed the claims file prior to examination. The
veteran reported being depressed due to pain in his legs and
hands. He stated that he took his medication and stayed
sedated most of the time. He again noted a number of deaths
of close people recently. He reported suicidal ideations but
denied homicidal ideations.
The examiner noted that the veteran was casually groomed and
walked with the aid of braces under each arm. He made
limited eye contact. He appeared rather dysphoric. His
speech was essentially normal in rate and rhythm. Mood was
depressed, and affect was appropriate. Thought process and
associations were logical and tight with no looseness of
association or confusion noted. Insight was limited and
judgment was adequate. No hallucinations or delusional
material were noted. The diagnosis was adjustment disorder
with depressed mood. A GAF of 50 was assigned.
The mental disorders examiner noted that the examiner who
evaluated the veteran's cold injuries indicated that some of
the veteran's complaints of physical problems could not be
substantiated upon examination. This cast some doubt that
the veteran's depression was secondary to his cold injuries.
In addition, the veteran suggested that some of his
depression was linked to the deaths of close relatives, which
he also stated in his previous VA examination. Thus the
examiner opined that the etiology of the depression remained
uncertain.
By rating action in February 2005, the RO increased the 10
percent ratings for cold injury to the left and right feet
from 10 percent to 20 percent each effective to January 12,
1998, the date of the change in the VA regulations regarding
cold injuries.
The claims file contains service, private and VA medical
treatment records. In addition the file contains a favorable
SSA determination dated in September 2001 awarding the
veteran SSA disability benefits. He had been found unable to
work as of August 1999 due to Raynaud's phenomenon,
polyneuropathy of the lower extremities, and diabetes
mellitus.
In addition the file contains extensive VA and private
treatment records for his cold injuries, depression, as well
as other conditions.
I. Service Connection. Service connection may be
established for a disability resulting from disease or injury
incurred in or aggravated by active service. 38 U.S.C.A. §§
1110, 1131 (West 2002). For the showing of chronic disease
in service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time.
Continuity of symptomatology is required only where the
condition noted during service (or in the presumptive period)
is not, in fact, shown to be chronic or where the diagnosis
of chronicity may be legitimately questioned. When the fact
of chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim. 38 C.F.R. § 3.303(b). Evidence of a chronic
condition must be medical, unless it relates to a condition
to which lay observation is competent. See Savage v. Gober,
10 Vet. App. 488, 495-98 (1997).
In order to establish service connection for the claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of the in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
current disability. Hickson v. West, 12 Vet. App. 247, 253
(1999).
Moreover, where a veteran served continuously for ninety (90)
days or more during a period of war, or during peacetime
service after December 31, 1946, and an organic disease of
the nervous system become manifest to a degree of 10 percent
within one year from date of termination of such service,
such disease shall be presumed to have been incurred in
service, even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. 38 U.S.C.A. §§
1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307,
3.309 (2003).
Service connection may be established on a secondary basis
for a disability that is proximately due to or the result of
a service-connected disease or injury. 38 C.F.R. § 3.310(a)
(2003). See Harder v. Brown, 5 Vet. App. 183, 187 (1993).
Additional disability resulting from the aggravation of a
non-service-connected condition by a service-connected
condition is also compensable under 38 C.F.R. § 3.310(a). See
Allen v. Brown, 7 Vet. App. 439, 448 (1995).
In order for a claim to be granted, there must be competent
evidence of current disability (established by medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (established by lay or medical evidence);
and of a nexus between the in service injury or disease and
the current disability (established by medical evidence).
See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997),
cert. denied sub nom. Epps v. West, 18 S. Ct. 2348 (1998);
Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d
604 (Fed. Cir. 1996) (table). Medical evidence is required
to prove the existence of a current disability and to fulfill
the nexus requirement. Brammer v. Derwinski, 3 Vet. App. 223
(1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
In claims for VA benefits, VA shall consider all information
and lay and medical evidence of record in a case before the
Secretary with respect to benefits under laws administered by
the Secretary. When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the Secretary shall give
the benefit of the doubt to the claimant. 38 U.S.C.A.
§ 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
Peripheral Neuropathy. A February 1999 EMG study of the
veteran's lower extremities resulted in an impression of
peripheral neuropathy. The veteran thereafter claimed
service connection for peripheral neuropathy of the lower
extremities as secondary to his cold injuries to the feet.
In support of his claim the veteran submitted several
statements from Dr. Kovaleski who stated the following:
"This man has a neuropathy stemming back to severe cold
exposure. I believe his neuropathy is related to his cold
exposure that he sustained while in the Armed forces." Dr.
Kovaleski also stated: "I believe that he suffered
significant thermal injury causing his continued paresthesias
of his lower extremities."
In the June 2000 VA examination, the examiner noted that an
EMG of the lower extremities in February 1999 revealed an
axonopathic sensory motor peripheral neuropathy of the lower
extremities. While the veteran reported never having an
alcohol problem and only used alcohol socially in the past,
he admitted being hospitalized in 1992 for at the Ft. Root
VAMC for alcohol, cocaine, and marijuana abuse. At that time
he reportedly had been drinking 6 cans of beer and a pint of
gin daily. He reported no sobriety in the previous 5 years.
It was the opinion of the examiner that the peripheral
neuropathy was most likely secondary to ethanol toxicity.
The rational for this opinion was the documentation of
significant ethanol abuse for several years prior to the
onset of these symptoms and the fact that the veteran had
clinical evidence of sensory loss involving not only the
service-connected lower extremities, but the upper
extremities as well.
In the April 2003 VA examination, the examiner noted that it
was at least as likely as not that diminished sensations of
the toes could well be due to his cold injuries, but review
of the records suggests that it may be equally likely that
this was due to other facts, such as alcohol abuse in the
past. The veteran had been diagnosed with digital neuropathy
which was consistent with alcohol abuse in the past. He
denied alcohol abuse stating that, "I drank a few when I was
younger, but I quit in 1990." He also specifically denied a
history of diabetes mellitus.
The examiner noted that he could not diagnose Raynaud's
phenomenon as the veteran's history was inconsistent with the
syndrome and there was no physical evidence to support this
diagnosis upon examination.
The Board notes that acute or subacute peripheral neuropathy
is one of the diseases listed in 38 C.F.R. § 3.309(e) to
which the presumption of service connection applies for
veterans exposed to Agent Orange. The regulation defines
acute or subacute peripheral neuropathy as transient
peripheral neuropathy that appears within weeks or months of
exposure to an herbicide agent and resolves within two years
of the date of onset. See 38 C.F.R. § 3.309(e), Note 2
(2004). The veteran's service personnel records indicate
that he served in Germany, and he had no Vietnam service.
Therefore, acute or subacute peripheral neuropathy is not
shown to have been caused by Agent Orange exposure.
Moreover, as the onset of peripheral neuropathy was
approximately 22 years following his discharge from service,
the presumptive provisions for a chronic neurological
disorder are not for application. See 38 C.F.R. §§ 3.307,
3.309.
The Board notes the medical opinions linking the veteran's
peripheral neuropathy to his long history of alcohol abuse.
This is further explained by the fact that the disorder
affects both his lower (cold injured) as well as his upper
(nonservice-connected) extremities.
In summary, the evidence shows that the veteran has some
residual numbness in the lower extremities, which is the
result of his cold injuries for which he has been awarded
benefits. In addition, he has peripheral neuropathy in the
bilateral lower and upper extremities, which appears to be
related to alcohol abuse in the past, and not his cold
injury.
The probative medical evidence shows that the peripheral
neuropathy is not related to an in-service disease or injury,
or a service-connected disability. The Board finds,
therefore, that the criteria for a grant of service
connection are not met, and that the preponderance of the
evidence is against the claim of entitlement to service
connection for peripheral neuropathy.
An Acquired Psychiatric Disorder. In March 2001, the veteran
filed a claim for service connection for an adjustment
disorder secondary to cold injuries of the feet.
The RO subsequently received VA mental health clinic records
revealing treatment for major depression, including a
November 2001 letter from a VA Mental Health Clinic nurse,
who opined that, "his mood disorder is the direct result of
the veteran's bilateral, residuals cold weather injury to
feet..."
In a June 2002 VA mental disorders examinations the diagnosis
was major depressive disorder, single episode, severe without
psychotic episode. The examiner opined that the etiology of
the depression was unclear. In part it appeared to be
related to his pain. However it was unclear what the
particular cause of the pain was. The veteran also
attributed the depression to the numerous deaths of close
relatives.
In the April 2003 VA mental disorders examinations the
examiner reviewed the claims file prior to examination. The
diagnosis was adjustment disorder with depressed mood. The
examiner again noted that the etiology of the depression was
somewhat unclear. He discussed the veteran's depression with
the cold injuries examiner who noted that some of the
veteran's complaints of physical problems could not be
substantiated by examination. This cast some doubt that the
veteran's depression was secondary to his cold injuries. In
addition, the veteran suggested that some of his depression
was linked to the deaths of close relatives, which he also
stated in his previous VA examination. Thus the examiner
opined that the etiology of the depression remained
uncertain.
None of the private or VA medical records, SSA records, or VA
examinations supports the veteran's contention or the
November 2001 VA Mental Health Clinic nurse's opinion, that
the veteran's mood disorder was the direct result of his
residuals of cold weather injury to the feet.
Importantly, the VA psychiatrist who reviewed the medical
records and examined the veteran in June 2002 and April 2003
found that the etiology of his depression was unclear. It
was noted that some of the veteran's complaints of physical
problems could not be substantiated. In addition the veteran
reported being depressed over his unemployment, as well as
the deaths of several relatives, including his parents,
godfather, 3 sister in-laws, 2 first cousins, and his
grandson.
The Board finds that reviews of the evidence conducted
subsequent to the November 2001 VA nurse's offered medical
opinion concluded that the etiological relationship between
any current psychiatric disorder and the veteran's cold
weather injury to the feet was unclear. The VA mental
disorders examinations in June 2002 and April 2003 cast doubt
that the mental disorder was secondary to cold injuries.
The April 2003 VA opinion demonstrates that the veteran's
depression is of uncertain etiology. Although no definitive
opinion as to etiology was provided, it was doubtful the
disorder was related to cold injury based upon the findings
of the April 2003 VA cold injury protocol examination. Thus,
the Board finds that the veteran's cold injuries neither
caused nor aggravated his psychiatric disorder.
Throughout his claim, the veteran has asserted that his
psychiatric disorder is secondary to service-connected cold
injuries. The veteran does not contend, and the evidence does
not show that he has any special medical training in this
regard. The Board does not doubt the sincerity of the belief
in this claimed causal connection. However, it is the
province of trained health care professionals to enter
conclusions, which require medical expertise, such as
opinions as to diagnosis and causation. See Jones v. Brown,
7 Vet. App. 134, 137 (1994) (the veteran's lay opinions
cannot be accepted as competent evidence to the extent that
they purport to establish such medical causation), Espiritu
v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Thus, the Board
finds that the veteran's contention that his psychiatric
disorder is secondary to his cold injuries cannot be accepted
as competent evidence.
Having reviewed the evidence of record, the Board finds that
service connection for a psychiatric disorder as caused by or
aggravated by service-connected cold injuries is not
warranted. In reaching this conclusion, the Board has
considered the applicability of the benefit of doubt
doctrine. However, the Board finds that the evidence is not
evenly balanced and that the preponderance of the evidence is
against his claim. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 55057 (1991).
II. Increased Ratings. Disability evaluations are
determined by the application of a schedule of ratings, which
is based on average impairment of earning capacity.
Generally, the degrees of disability specified are considered
adequate to compensate for considerable loss of working time
from exacerbations or illnesses proportionate to the severity
of the several grades of disability. 38 C.F.R. § 4.1 (2004).
Separate diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2004).
However, the Board has been directed to consider only those
factors contained wholly in the rating criteria. See Massey
v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v.
Principi, 16 Vet. App. 436 (2002) (finding it appropriate to
consider factors outside the specific rating criteria in
determining level of occupational and social impairment).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluations will be assigned if
the disability more closely approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2004). When, after careful
consideration of all procurable and assembled data, a
reasonable doubt arises regarding the degree of disability,
such doubt will be resolved in favor of the veteran. 38
C.F.R. § 4.3 (2004).
Since the veteran takes issue with the initial rating
assigned when service connection was granted for cold injury
residuals involving the extremities, the Board must evaluate
the relevant evidence since the effective date of the award;
it may assign separate ratings for separate periods of time
based on facts found, a practice known as "staged" ratings.
Fenderson, at 125-26.
Change in Regulations. VA twice promulgated amended
regulations for cold injury residuals, effective January 12,
1998, and August 13, 1998. See 62 Fed. Reg. 65207-65224
(Dec. 11, 1997); 63 Fed. Reg. 37778-37779 (July 14, 1998).
The timing of the changes require the Board to first consider
the claims under the pre-amended regulations for any period
prior to the effective date of the amended diagnostic codes.
Thereafter, the Board must analyze the evidence dated after
the effective date of the amended regulations and consider
whether a rating higher than the pre-amended rating is
warranted. See VAOPGCPREC 7-2003; Kuzma v. Principi, 341
F.3d 1327 (Fed. Cir. 2003).
Pre-Amended Regulations. Specifically, pre-amended DC 7122,
formerly residuals of frozen feet (immersion foot), was
revised effective from January 12, 1998, and is now
designated as residuals of cold injury. Under the former
rating criteria, residuals of frozen feet with mild symptoms
such as chilblains were rated as 10 percent disabling whether
unilateral or bilateral. Persistent moderate swelling,
tenderness, redness, etc. was rated 20 percent when
unilateral and 30 percent when bilateral. Loss of toes or
parts, and persistent severe symptoms were rated 30 percent
when unilateral and 50 percent when bilateral.
After a review of the record, the Board concludes that an
evaluation in excess of 10 percent for frostbite of the feet
is not warranted under the pre-amended regulations. The 10
percent rating anticipates mild symptoms such as chilblains.
In a November 1992 VA examination the examiner noted
excellent hair growth on the dorsum of both feet and toes,
and good pulses in the peripheral arteries.
In a personal hearing at the RO in February 1998, the veteran
testified that his feet have bothered him as he got older and
his main symptoms were pain and throbbing.
The Board notes that there is currently no evidence of
persistent moderate swelling, tenderness, redness, loss of
toes, or parts. As such there is no evidence for a higher
rating under the pre-amended regulations and there is no
evidence for an increased initial rating for the period from
October 7, 1996 to January 11, 1998.
As the criteria for a higher rating were not shown, the Board
finds that the claim for a higher than 10 percent initial
rating under the pre-amended regulations must be denied.
Amended Regulations. Under the amended regulations, DC 7122
provides for a 30 percent rating for cold injury residuals,
with pain, numbness, cold sensitivity, or arthralgia, plus
two or more of the following: tissue loss, nail
abnormalities, color changes, locally impaired sensation,
hyperhidrosis, or X-ray abnormalities (osteoporosis,
subarticular punched out lesions or osteoarthritis) of
affected parts. No higher rating is assignable for cold
injury residuals under DC 7122.
A 20 percent rating is assigned for pain, numbness, cold
sensitivity, or arthralgia, plus tissue loss, nail
abnormalities, color changes, locally impaired sensation,
hyperhidrosis, or X-ray abnormalities (osteoporosis,
subarticular punched out lesions or osteoarthritis) of
affected parts.
A 10 percent rating is assigned for pain, numbness, cold
sensitivity, or arthralgia. Amputations of fingers or toes,
and complications such as squamous cell carcinoma at the site
of a cold injury scar or peripheral neuropathy should be
separately evaluated under other diagnostic codes. Each
affected part (hand, foot, ear, nose) is evaluated separately
and the ratings are combined, if appropriate, in accordance
with 38 C.F.R. §§ 4.25 and 4.26.
The rating criteria for residuals of cold injury in the
Schedule were again amended, effective August 13, 1998, in
order to incorporate additional comments VA had received on
the proposed criteria. See 63 Fed. Reg. 37778-37779 (July
14, 1998). The additional amendment clarifies that
disabilities that have been diagnosed as the residual effects
of cold injury, such as Raynaud's phenomenon, muscle atrophy,
etc., should be separately evaluated unless they are used to
support an evaluation under DC 7122. Id. It was also noted
that arthralgia is but one type of pain that will satisfy the
evaluation criterion. See 63 Fed. Reg. 37779 (July 14,
1998). Otherwise, the basic evaluations remained unchanged.
As the symptoms associated with cold injury residuals are
essentially the same for both feet, the Board will analyze
them together, although they are now separately rated.
After a review of the record, the Board concludes that
evaluations in excess of 20 percent for cold injury residuals
of the right and left feet are not warranted under the
amended regulations. As noted, the highest rating available
under the amended regulations is a 30 percent rating for each
foot, which requires pain, numbness, cold sensitivity, or
arthralgia, PLUS two or more of the following:
tissue loss, nail abnormalities, color changes, locally
impaired sensation,
hyperhidrosis, or X-ray abnormalities.
While the veteran has consistently reported pain, numbness,
cold sensitivity, and discoloration of the 5th toenails
bilaterally, the Board finds that higher ratings are not
warranted because there is no evidence of two of the required
symptoms of tissue loss, generalized nail abnormalities,
color changes of the skin, impaired sensation, hyperhidrosis,
or X-ray abnormalities.
Specifically, in a May 1999 VA examination report, the
physical examination revealed no evidence of pes planus, pes
cavus deformity, callous formation, loss of digits, or fungal
infection of the feet. Toenail thickness was normal but
there was hyperpigmentation of the fifth toenails
bilaterally. There was partial hair loss over the toes and
dorsum of the feet. The feet were moist but cool to touch
and dorsalis pedis and posterior tibial pulses were excellent
bilaterally.
In a June 2000 VA examination, the examiner noted a
generalized distal symmetrical sensory motor peripheral
neuropathy involving both upper and lower extremities. He
opined this was most likely secondary to ethanol toxicity.
The rational for this opinion was the documented significant
ethanol abuse for several years prior to the onset of these
symptoms and the fact that the veteran had clinical evidence
of sensory loss involving both the upper and lower
extremities; myositis resulting in myalgia and lower
extremity weakness most probably present for the past 4
years.
Similarly, in the more recent April 2003 VA examination
report, the examiner specifically noted that the records
mentioned a diagnosis of Raynaud's phenomenon however the
veteran was unable to described symptoms of Raynaud's. The
veteran only stated that he had occasional tingling and
numbness of the feet. He had no history of fungal
infections, ulcerations, scars, or disturbance of nail
growth. He denied arthritic pain of the feet or swelling,
changes in skin color or thickness.
The examiner noted the foot color was unremarkable and
uniform. There was no cyanosis, hyperemia, edema,
ulcerations noticed. The feet were cool to touch and dry.
He had no evidence of fungus, scars, and his nails were
intact. He had diminished sensation over the distal toes.
No orthopedic abnormalities were noted. There was no
evidence of Raynaud's noted.
Based on the above evidence, the Board finds no basis to
assign higher ratings at this time under DC 7122.
Significantly, while the veteran reports on-going symptoms of
cold sensitization, pain, numbness, and a cold feeling to the
feet, those symptoms alone are not sufficient to establish a
higher evaluation. As symptoms of tissue loss, nail
abnormalities, color changes, impaired sensation,
hyperhidrosis, or X-ray abnormalities are not shown, the
Board finds that the claims for higher ratings for cold
injury residuals to both feet must be denied. Accordingly,
the medical evidence of record does not support a higher than
20 percent rating for right and left foot cold injury
residuals at this time.
The Board has also considered whether the veteran may be
entitled to a separate compensable rating under either the
pre-amended or amended regulations regarding Raynaud's
Disease.
Under the pre-amended regulations, a severe form of Raynaud's
Disease with marked circulatory changes such as to produce
total incapacity or to require house or bed confinement
warranted a 100 percent evaluation. When manifest by multiple
painful, ulcerated area, a 60 percent rating was assigned.
With frequent vasomotor disturbances characterized by
blanching, rubor and cyanosis, a 40 percent rating was
granted. Occasional attacks of blanching or flushing
warranted a 20 percent evaluation. 38 C.F.R. § 4.104, DC
7117, as in effect prior to January 12, 1998.
The amended rating criteria for evaluating Raynaud's Disease
are as follows:
With two or more digital ulcers plus autoamputation of
one or more digits
and history of characteristic attacks; rate as 100
percent disabling.
With two or more digital ulcers and history of
characteristic attacks;
rate as 60 percent disabling.
Characteristic attacks occurring at least daily; rate as
40 percent
disabling.
Characteristic attacks occurring four to six times a
week; rate as 20 percent disabling.
Characteristic attacks occurring one to three times a
week; rate as 10 percent disabling.
38 C.F.R. § 4.104, DC 7117 (2004).
After a review of the claims file, the Board finds that a
separate compensable rating is not warranted for Raynaud's
disease, under either the pre-amended or amended regulations.
First, while the Raynaud's phenomenon was listed as a
disability by the SSA in 2001, the VA cold injury protocol
examiner in April 2003 found no evidence of Raynaud's
phenomenon. The veteran's only complaints at that time were
constant pain and excessive sweating. Similarly, in the
earlier June 2000 VA examination, the veteran's only
complaints were numbness in both feet. Physical examination
revealed no symptomatology consistent with Raynaud's Disease.
Therefore, the Board can find no basis for a separate
compensable rating under the pre-amended DC 7117.
None of the post-amendment examiners have described
"characteristic attacks" or symptoms consistent with
Raynaud's disease. That is to say, there has never been
evidence of color changes of the feet or digits. In the most
thorough and recent of the examination reports, dated in
April 2003, the examiner specifically found that the veteran
had no physical evidence of Raynaud's phenomenon. As such,
there is no basis for a separate compensable rating for
Raynaud's disease at this time under the amended regulations.
Any reasonable doubt regarding the degree of disability has
already been resolved in favor of the veteran, as he is in
receipt of a 20 percent rating for each foot notwithstanding
the fact that not all criteria are met for a 20 percent
rating. There is no question as to whether a 20 percent or
30 percent rating should be applied, as the disability
picture does not more nearly approximate the 30 percent
rating and the lower rating was properly assigned.
Consequently, the claim for ratings in excess of 20 percent
for residuals of frostbite, for each lower extremity must be
denied.
In addition as the evidence does not reveal moderate
persistent swelling, tenderness, or redness under the pre-
amendment criteria, entitlement to an initial increased
disability evaluation greater than 10 percent for residuals
of a cold injury to both feet, from October 7, 1996, to
January 11, 1998, must also be denied.
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for peripheral neuropathy is denied.
Service connection for an acquired psychiatric disorder is
denied.
A disability evaluation in excess of 10 percent for residuals
of a cold injury to both feet, from October 7, 1996, to
January 11, 1998, is denied.
A disability evaluation in excess of 20 percent for cold
injury residuals, right foot from January 12, 1998, is
denied.
A disability evaluation in excess of 20 percent for cold
injury residuals, left foot from January 12, 1998, is denied.
____________________________________________
Gary L. Gick
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs